Opinion
2020-789 Q C
07-23-2021
Marmon Realty Group, LLC, Respondent, v. Wanas Khalil, Doing Business as Francis Lewis Pharmacy, Appellant.
The Law Offices of Ari Mor, Esq., P.C. (Ari Mor of counsel), for appellant. Forchelli, Deegan, Terrana, LLP (Richard A. Blumberg of counsel), for respondent.
Unpublished Opinion
The Law Offices of Ari Mor, Esq., P.C. (Ari Mor of counsel), for appellant.
Forchelli, Deegan, Terrana, LLP (Richard A. Blumberg of counsel), for respondent.
PRESENT: MICHELLE WESTON, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered May 22, 2020. The order, insofar as appealed from as limited by the brief, denied tenant's cross motion for summary judgment dismissing the petition in a nonpayment summary proceeding.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
Landlord moved to, among other things, restore this commercial nonpayment proceeding to the trial calendar after it was marked off the calendar, and tenant cross-moved for summary judgment dismissing the petition. As limited by his brief, tenant appeals from so much of an order of the Civil Court entered May 22, 2020 as denied tenant's cross motion which sought summary judgment dismissing the petition on the ground that landlord failed to serve tenant with a predicate notice. The court held that tenant's defense of failure to serve a predicate notice implicated personal jurisdiction and rejected it as untimely raised.
Tenant's defense concerning landlord's alleged failure to serve a predicate notice does not implicate personal jurisdiction (see 156 Nassau Ave. HDFC v Tchernitsky, 62 Misc.3d 140 [A], 2019 NY Slip Op 50059[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]), but presents a defense to this nonpayment proceeding that was properly raised in tenant's answers and, again, in tenant's cross motion (cf. West Haverstraw Preserv., LP v Diaz, 58 Misc.3d 150 [A], 2018 NY Slip Op 50085[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; Forest Hills S. Owners, Inc. v Ishida, 33 Misc.3d 141 [A], 2011 NY Slip Op 52202[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). However, contrary to his contention, tenant was not entitled to summary judgment dismissing the petition on the ground of improper service of a predicate notice.
Here, the affidavits of service established that the process server served tenant with a three-day rent notice at both tenant's home address and the address of the subject premises. Specifically, for service at each address, the process server made two unsuccessful attempts of personal or substitute service and thereafter implemented conspicuous-place service by affixing the notice to the door of the premises and mailing a copy to that same address. The affidavits of service therefore constituted prima facie evidence of proper service (see Deutsche Bank Natl. Trust Co. v Quinones, 114 A.D.3d 719, 719 [2014]; Parker v Top Homes, Inc., 58 A.D.3d 817, 818 [2009]; 425 E. 26th St. Owners Corp. v Beaton, 50 A.D.3d 845, 846 [2008]) of the rent notice in compliance with RPAPL 735 (1).
In order to rebut this prima facie showing and raise an issue of fact necessitating a traverse hearing, the party challenging the service must submit a sworn, nonconclusory, factually specific denial of service (see Ahluwalia v Seecharan, 186 A.D.3d 1302, 1303 [2020]; Deutsche Bank Natl. Trust Co. v Quinones, 114 A.D.3d at 719). Tenant's bare and unsubstantiated denial of service in his affidavit lacked the factual specificity required to rebut the prima facie evidence of proper service (see Deutsche Bank Natl. Trust Co. v Quinones, 114 A.D.3d at 719; ACT Props., LLC v Garcia, 102 A.D.3d 712, 713 [2013]; Scarano v Scarano, 63 A.D.3d 716, 716-717 [2009]; cf. U.S. Bank N.A. v Kohn, 188 A.D.3d 1290, 1292 [2020]).
Accordingly, the order, insofar as appealed from, is affirmed.
WESTON, J.P., TOUSSAINT and GOLIA, JJ., concur.